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Monthly Archives: March 2019

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The
Director of Public Prosecutions (DPP) has the responsibility for determining
whether a corporation (a partnership or an unincorporated entity) should be
offered a Deferred Prosecution Agreement (DPA). The DPP has the benefit of the
full police investigation, other court records, documents and witness
interviews, including material that may never be publicly disclosed, that
enable her to draw her conclusion. The public has no such access so I will not
even try to second guess whether the DPP’s decision not to offer a DPA to SNC-Lavalin was a reasonable one.

A DPA
cannot be offered to an individual, only to an artificial person for which any
sanction would be financial. Like any plea bargain, the possibility and terms
of a DPA negotiated between the accused and the prosecutor are subject to court
approval. The DPA must “be in the interests of justice.” Its terms must be
fair, reasonable and proportionate. Reasons must be given for declining a DPA.
If a court does not approve a DPA, the possibility of prosecution is not
jeopardized because the DPA terms are not yet public.

The
SNC-Lavalin affair never came nearly that far since the DPP refused to
negotiate a DPA and Attorney General (AG) Jody Wilson-Raybound (JWR) refused to
intervene in the decision. JWR reviewed the DPP’s decision and concluded that
she would be wrong to intervene. That is virtually all we know about why the AG
declined to overturn the decision of Kathleen Roussel, Canada’s DPP, to proceed
to trial.

The only substantive
complaint that’s been made over this whole supposed “scandal” seems to be that
the AG was not sufficiently persuaded by concerns about job losses to overturn
the professional opinion of Canada’s most senior prosecutor. Further, it is
helpful to keep in mind the OECD anti-bribery framework to which Canada has
long been a signatory. Our legislation, including DPAs, is modeled on that
framework. We also have a record of the criminal activities for which
SNC-Lavalin has been convicted.

We do know the following. SNC-Lavalin has
been guilty of the following overseas infractions and has:

been banned from
bidding on Asian Development Bank projects because SNC fabricated
qualifications and documents (2004);

agreed to a
settlement with the African Development Bank over corruption allegations because
of bribes in Mozambique (2008) and Uganda (2010);

determined by
the World Bank as having credibly participated in high-level corruption in
Bangladesh in 2009-2010;

entered into a
voluntary debarment from World Bank-financed projects.

Within Canada, SNC-Lavalin has been found to have

bribed Canadian
officials to the extent of $22.5 million in relation to the McGill
hospital contract I wrote about in my initial blog in this series (2009);

There is a
widespread belief that general guidelines for issuing a DPA include the
principle that it should be the exception and not the norm and that a DPA
should only be entered into when the offences are not very serious. Neither consideration
is correct. DPAs are negotiated worldwide for extremely serious crimes. They
need not apply only in exceptional cases, but may, in the interests of justice,
especially when there are effects on the innocent, be entered into. On
appearance, SNC-Lavalin’s behaviour would seem to fall into this category since
the point of a DPA is, according to OECD guidelines, to minimize consequences
to innocent third parties, including employees. Therefore, the PMO and the
Minister of Finance had every right and even duty to raise the possibility.

Canada can
look to the UK for precedents where the issuance of three DPAs have been
concluded. I have chosen the Rolls-Royce (R-R) case rather than SFO v Standard Bank plc and SFO v XYZ Ltd
because R-R and SNC-Lavalin are most similar.
In Britain, the Serious Fraud Office (SFO – presumably there is fraud that is
not serious), following a four-year investigation, entered into a DPA with R-R approved
by the President of the Queen’s Bench on 17 January 2017 following criminal
conduct by R-R over three decades in seven different jurisdictions (Nigeria,
Indonesia, Russia, Thailand, India, China and Malaysia). R-R agreed to reimburse
SFO for its costs, thirteen million pounds, and to repay “disgorged” profits of
£258,170,000 and a financial penalty of £239,082,645. R-R was also
required to pay interest on those sums. (For full details of the agreement, go
to https://www.sfo.gov.uk/cases/rolls-royce-plc/.

SNC-Lavalin’s crimes
in Libya did not seem nearly as serious as those of R-R, certainly in monetary
terms. They took place over a shorter time span, in one specific location, and did
not seem to entail such enormous repayments or penalties. The R-R case seemed
to offer a precedent for a DPA for SNC-Lavalin. However, as already stated, we
do not have access to the evidence collected.

In Sir Brian Leveson’s
ruling, he noted that R-R “is properly considered to be a company of central importance
to the United Kingdom, with a reputation in the field of engineering second to
none…[R-R] is a global company providing highly-efficient integrated power and
propulsion solutions. [Its] power systems are predominantly used in aerospace,
marine, energy and off-highway applications [locomotives…R-R is] one of the
world’s leading producers of aero engines for large civil aircraft and
corporate jets…, the second largest provider of defence aero engines in the
world…well established in the marine sector where [the company] designs
vessels [including nuclear submarines and luxury yachts] and integrated power
systems.”

Worldwide, R-R employs 50,000 compared to SNC-Lavalin’s 9,000. If the UK system
could balance the positive role of the company against its criminal deficiencies
and take into account effects on employment, why could the Canadian legal system
not do the same? One easily understands why the PM, the PMO, the Finance
Ministry of the people working there all wanted the AG to consider the wider
picture. On the other hand, it is also totally understandable why JWR wanted to
protect the independence of the DPP, not intervene unless there was overwhelming
evidence to do so, and why she would regard the repeated “pressures” as “inappropriate,”
though not illegal.

Sir Brian Leveson ruled that the role of R-R in the world had to be
considered when examining its criminal behaviour. There was one major
difference, however, R-R voluntarily owned up to its sins, though the
investigation initially was not taken as a result of self-reporting; Swiss
authorities first uncovered the crimes. To the best of my knowledge,
SNC-Lavalin also did not self-report. Cooperation in the criminal prosecution
seemed to provide some mitigation for R-R’s serious breaches of criminal law in
the arena of corruption and bribery since the conduct of the investigation was
enormously assisted by R-R. Further, Leveson, while considering the impact of prosecution
on employees and other innocent parties and the impact on whether R-R could
continue to function in its areas of specialization, but none of these factors,
and certainly the impact on national economic interests, were determinate in approving the DPA for R-R.
Serving justice in a fair and reasonable way were.

What about the issue of R-R’s or
SNC-Lavalin’s responsibility for causing “serious bodily harm or death”? In
such cases, DPAs are not considered to be applicable. In the SNC-Lavalin case,
no professional killers were evidently involved, though, indirectly, many
deaths might be attributed to the record of corrupt activities. Further,
SNC-Lavalin fired its key leadership and undertook to thoroughly clean house
and establish a culture of honesty. Did it do the latter? I have no way of
knowing to judge the appropriateness of a DPA. We do know that Riadh Ben Aïssa has been cooperating with the
prosecutor.

All this must be kept in mind as we review the events that took place
after 20 September 2018. As you will see, contrary to what has often been claimed
on media, there is no evidence whatsoever that the government tried to obtain
lenient treatment for SNC-Lavalin or even influence the terms of a DPA, but
only to influence whether and how a DPA could be offered. The issue was whether
the government applied pressure in such a way as to compromise the independence
of the AG.

On 18 October 2018, a new effort was launched into influencing the AG to
change her mind and consider offering a DPA. The method of getting around the
determination of the DPP was that the AG seek an independent advisory from an
eminent jurist given the lack of precedent for a DPA. Mathieu Bouchard called JWR’s
Chief of Staff and requested consideration of the option of seeking an external
legal opinion on the DPP’s decision not to extend an invitation to negotiate a
DPA.

On 20 October 2018, SNC filed a federal court application seeking to quash the DPP’s refusal
to enter into a mediation agreement and a judge was now asked to examine the
DPP’s discretion. On 26 October, JWR’s chief of staff communicated to Mathieu
Bouchard that the possibility of the AG intervening was moot since the matter
was now before the court.

Gerry Butts
in his testimony confirmed that Mathieu Bouchard and Elder Marques had a
discussion on 22 November with the former AG about a memo prepared by
lawyers in the Department of Justice discussing the option of seeking
counsel from an eminent jurist. JWR was irritated about even holding a meeting
and insisted that the DPP Act. Section 15,
Section 10 ensured prosecutorial independence as a constitutional principle.
JWR insisted that Bouchard and Marques were interfering. She had made a
decision not to intervene.

JWR concluded that representatives
from the Ministry of Finance and the PMO were
kicking the tires; she had said no and her mind had been made up; they needed
to stop; this was enough. As JWR argued, “We either have a system that is based
on the rule of law, the independence of prosecutorial functions and respect for
those charged to use their discretion and powers in a particular way, or we do
not…The consistent and enduring efforts, even in the face of judicial
proceedings on the same matter and in the face of a clear decision of the
director of public prosecutions and the attorney general to continue and even
intensify such efforts, raises serious red flags.”

At the end of a two-hour meeting over
lunch between JWR and Gerry Butts at the
Château Laurier Hotel on 5 December requested by JWR, she asked for Butts’
opinion on the SNC-Lavalin file. He insisted he had no expertise on the issue
but understood that the prospect of appointing a retired Supreme Court Justice
to advise on the situation was being discussed between the PMO and her office. Though
what Elder and Mathieu had proposed was unprecedented, so were DPA remediation
agreements. The referral for advice would help clarify the AG’s powers in this
and any subsequent case. Nevertheless, it was her call. Gerry insisted that he
had not applied any pressure while JWR recalled that he had.

What then followed was the ignition key which eventually blew the whole dissension over how to handle the DPA into the open with the minor cabinet reshuffle, a matter that I will visit in my next blog.

There have been two critical developments since
my last blog. Michael Wernick announced his retirement as clerk of the Privy
Council because he had lost the trust of the opposition as a direct consequence
of the SNC-Lavalin affair. Second, Justin Trudeau appointed former deputy prime
minister, Anne McLellan, as a special adviser to consider the recommendation of
both Jody Wilson-Raybould (JWR) and the former Justice Minister, Irwin Cotler, that
the roles of Minister of Justice (MJ) and of Attorney General (AG) be split. McLellan
was also charged with reviewing the operating policies and practices in
inter-ministerial communications and between public servants and political
staff. The affair keeps rolling along; a review of the legal and political
history is critical.

SNC-Lavalin is a worldwide behemoth engineering
and construction company. Currently,
about one-sixth of its over $9 billion income stems from Canadian government
contracts and another one-sixth from provincial and other domestic contracts.
As indicated in the previous blog, from 2000-2012, SNC-Lavalin had developed a
reputation for engaging in seedy practices in obtaining such contracts. One
question was whether it had reformed sufficiently so that the company could
obtain a deferred prosecution agreement (DPA) for its alleged bribes in Libya under
the Gaddafi regime. Under current rules, if SNC-Lavalin is convicted, that
would mean a 10-year ban on SNC receiving federal contracts.

After engaging in discussions with various
parties, a provision for deferred prosecution agreements was included in the
March 2018 omnibus budget bill after lobbying from SNC-Lavalin following charges
against SNC-Lavalin in February 2015. After the election of the Liberals, numerous
meetings took place over two years between SNC-Lavalin and personnel from the office
of the Minister of Finance, Morneau, including Francois-Philippe Champagne,
Morneau’s parliamentary secretary and senior policy adviser, Robert Asselin.

The DPA was not just a product of the
self-interest of big business. In 2011, the Organization for Economic
Cooperation and Development (OECD) country report on enforcement of its
anti-bribery convention critically singled out Canada for its failure to act
against bribery. Only one successful prosecution had been managed since the law
was passed in 1999. In 2018, Canada was branded with “limited enforcement” with
respect to the convention, largely because Canada took too long to bring cases
to court, in turn, largely a result of an inadequate number of judges being
appointed. It had been determined that a reasonable wait time would be 30
months. The withdrawal of almost all charges against the former CEO and Vice-President
of SNC-Lavalin has been attributed to these delays.

The SNC-Lavalin affair arose after JWR resigned as MJ and AG, but it
began when she occupied that office. The MJ focuses on policy in relationship
to the justice system in general. As AG, wearing her other hat, JWR is the top
prosecuting authority in the country. Normally, that authority is
exercised by the director of public prosecutions (DPP) with respect to any
litigation on behalf of the Crown. During the period of the alleged scandal,
Kathleen Roussel (KR) was appointed as DPP on 21 June 2017 and continues to
hold the position.

In addition
to prosecutorial functions, the AG serves as the chief legal adviser to
the government of Canada (GofC) as distinct from her role as MJ responsible for
policy with respect to justice issues. Under the Director of Public Prosecutions
Act (DPPA), the AG retains prosecutorial authority and discretion, to be
exercised individually and independently. The AG has the authority to issue
directives to the DPP on specific prosecutions, or even to take over a prosecution.

Though these
are not cabinet decisions, cabinet colleagues, including the Prime Minister,
may draw to the AG’s attention any important policy considerations relevant to how
a prosecution will proceed. Those policy considerations specifically exclude
partisan political ones, such as the effect of a prosecution on the Quebec
provincial election. After the Action démocratique du Québec’s election victory
in October. JWR alleged that in a meeting with Jessica Prince and Mathieu
Bouchard from the PMO, Mathieu, Trudeau’s senior policy adviser, raised the
question of the federal election and the impact of SNC-Lavalin moving its
headquarters abroad. Finally, there is an inherited important political aspect
to the MJ/AG position. The MJ and AG positions are considered high ranking cabinet
appointments and have often been stepping stones for the holder of those
positions to becoming Prime Minster.

The Public Prosecutions Act now includes a
provision for Deferred Prosecution Agreement (DPA) or remediation agreements,
an inclusion supported by Transparency International Canada because it was
believed that the possibility of a DPA would encourage companies to voluntarily
report and remedy wrong doing. At the same time, a DPA does not exempt a
company from paying financial penalties or individuals from being held
accountable for criminal actions. Since the possibility of a DPA has been
included in the Act, it has not yet been used. Nor have detailed guidelines
been established for its use, particularly around the issue of its employment
when serving a public interest.

The central issue of the whole affair was whether
cabinet colleagues and/or the Prime Minister’s Office (PMO) intervened in a
specific decision and/or exercised untoward pressure on the AG or otherwise
engaged in inappropriate behaviour with respect to a prosecution. The path to
the conflict over the DPP Kathleen Roussel sent JWR a memorandum pursuant
to Section 13 of the Director of Public Prosecutions Act (DPPA) entitled,
“Whether to issue an invitation to negotiate a remediation agreement to
SNC-Lavalin.” It remains a political issue even though a Federal Court on 8
March 2019 struck down SNC’s appeal for a judicial review.

On 4 September 2018, the
DPP offered two advisories:

1. an invitation to negotiate a DPA with SNC-Lavalin not be made;

2. the decision to reject the prospect of a DPA by the Public Prosecution Service of Canada (PPSC) would not be announced at this time.

According
to testimony before a House of Commons Justice Committee, on 6 September 2018,
Ben Chin, Chief of Staff for Bill Morneau, Minister of Finance, implied that
SNC be granted a DPA lest the SNC-Lavalin become a political issue in Quebec,
since SNC had indicated that it might be “forced” to move its head office to
London, UK. Morneau defended his staff in bringing to the attention of the AG
the prospective job losses in Quebec, but skirted any discussion of the
appropriateness of raising the issue of the October Quebec election.

JWR was to undertake further internal work and due diligence before
an announcement would be made. On 7 September, JWR’s Chief of Staff spoke to Ben
Chin, Morneau’s Deputy Minister, to inform them that deputy attorney general,
Nathalie Drouin, was trying to work out something at the same time as they were
writing up an opinion on what the proper relationship should be of the AG to
the PPSC. Reflections on both these matters were written up and a list of
options provided to the PMO as well as an opinion on the AG’s role.

JWR requested an urgent meeting with Justin Trudeau
as soon as the latter returned from abroad, but it was about another matter.
Finally, on 11 September, the AG’s office informed SNC that it would not
receive a DPA. SNC legal counsel, Frank Iacobucci, pursued the matter believing
that the decision was not final and was still negotiable, perhaps a reasonable conclusion
since SNC had not been informed in writing. Iacobucci detailed the terms SNC would
agree to in a DPA.

On
16 September, JWR’s chief of staff informed Elder Marques of the PMO of further
discussions with representatives of SNC. She communicated what had been decided;
the Director does not want to negotiate a DPA. However, the deputy minister was
prepared to get outside legal advice on the issue. That was the wedge that they
had hoped for and they rejoiced. Was JWR open to that suggestion?

The
matter was not just left at that. Once again, the impact on the Quebec election
was raised and the hope was that a more reasonable solution might be
found before the SNC board met on 20 September. JWR’s back was up by this point
and she informed the PMO’s office concerning prosecutorial independence and a
concern re interference in the independence of the prosecutorial functions. JWR
also did, as Morneau contended, contact Morneau about the issue, almost two
weeks after Chin communicated the Ministry of Finance’s concerns. However, what
Morneau did not say was that the contact had been made to remonstrate Morneau
for raising the issue of jobs with JWR and that such expressions of concern,
according to JWR, were inappropriate.

The question anyone reading this timeline has to
ask, was why did the PMO and the Ministry of Finance not drop the matter then
and there? Representatives from both the finance minister’s office and the PMO
insisted that they did not want to cross any lines and that the decision was
JWR’s alone to make. A request was made that JWR directly contact Trudeau on
the matter. JWR concluded that it would be both inappropriate for her to
intervene in a DPP decision and that no DPA should be pursued.

On 17 September, JWR met with both the PM and Michael
Wernick, clerk of the Privy Council, primarily over another matter, but the
issue was raised by the PM concerning Morneau’s contention that she take into
account the impact of her decision. JWR reiterated her position. The PM asked
for help in finding a solution. JWR insisted that she could not and did not
want to go beyond what she believed was her proper authority to enter into
negotiations. The DPP had decided and she had exercised sufficient due
diligence to back that decision.

Justin
Trudeau raised three issues: a) potential loss of jobs; b) the election in
Quebec and c) the fact that he was an MP from Quebec. JWR asked: “Are you politically interfering with my
role, my decision as the attorney general? I would strongly advise against it.”
JT insisted he was not interfering at all but simply was asking her to find a
solution. Michael Wernick agreed that all of the above had been discussed and
reaffirmed that the issue of job losses and the effects on the Quebec election
had been raised, but insisted that it was his proper role to remind federal
officials of potential impacts of federal decisions on provinces. In any case, JWR
agreed she would discuss the issue with her staff, would organize a meeting
with Michael, herself and her DM, but reiterated that she had made up her mind.

Gerry Butts, who had not attended the above meeting
but had been briefed on it, in his testimony before the Justice Committee,
raised the question: If the Attorney-General had made a decision, and
communicated it to the Prime Minister and Clerk, why would there be a next step
at all? Why would the AG take and solicit meetings on a closed matter? I myself
think the answer is obvious, the PM had requested that she do so.

Gerry’s second query was, “Why would the Attorney-General not communicate her final decision in
writing to the Prime Minister?” since putting her position in writing was her
preferred mode of communicating. I believe the answer to that is also obvious. The
topic could be embarrassing to the government and, especially, the PMO. Better
then to communicate her rejection of those repeated requests orally. Appointment
of a Supreme Court justice, the TMX pipeline process, and the work of the
Cabinet Committee on Reconciliation were not politically sensitive issues where
fundamental principles seemed to be at stake.

On 19
September, Michael Wernick and JWR met. Wernick stressed that the issue was only
about job losses and not politics. The determining date was the next day when
the SNC-Lavalin board would be meeting. However, JWR reiterated her position
that her deputy not meet with the DPP and that the DPP’s decision had to be
respected. Could JWR not communicate to the DPP the public interest argument?
JWR insisted that would be inappropriate.

Elder Marques and Mathieu Bouchard from the PMO also
barged in and asked JWR’s chief of staff for an update. The latter relayed a
summary of the meeting with Michael Wernick. Could not there be “an informal”
outreach to the DPP? JWR’s chief of staff said that would be political
interference. Morneau also raised the issue with JWR in the House, reiterating
the concern with loss of jobs, and received the same reply.

It is
important to recognize how the timelines and substantial points from both sides
were overwhelmingly in agreement. The interpretations and significance were not.
Why didn’t Justin Trudeau call the dogs off?

There are
many evaluations and many points of view on the SNC-Lavalin Affair in Canada.
This is mine. But I cannot help noting that neither mine, nor that of anyone
else focused on the issue, matters a great deal to the ordinary Canadian,
whomever that person is. However, it is certainly a focus of concern and
analysis for the chattering classes. As observed below, currently the issue also
matters to enough people, possibly to swing the next election. Therefore, it is
important to understand and evaluate what has taken place.

I will deal
with the affair in a series of blogs to offer a reasonably thorough analysis so
that these writings can also be used as a reference. As currently planned, the
blogs will cover:

SNC-Lavalin, law and Ethics – an Introduction (this blog)

Jody Wilson Raybould (JWR)

The
Government’s Defence

Issues:

a) The
Possible Deferred Prosecution Agreement (DPA)

b)
Intervention, Pressure or Inappropriateness

c)
Motivations

d) Resignations

5. Media Coverage

6. Political Implications

David Coletto
and Bruce Anderson of ABACUS Data polled Canadians regularly over the course of
the controversy as it initially unfolded, first prior to The Globe and Mail story on 5 February 2019, then just prior to
Jody Wilson-Raybauld’s resignation from cabinet on 26 February 2019, and then
followed by rolling 3-day surveys from 28 February to 4 March 2019. What were the
results? Were Canadians following the issue and did they believe the Prime
Minister should resign?

Roughly,
Liberal support dropped over the period by 3%, virtually all of that drop in
the first phase of the “scandal.” PC strength grew by the same amount so that the
party ended up with the largest lead of 6% that it has had over the current
Liberal government. The Green Party increased in strength, largely at the
expense of the NDP, but again only in the first phase of the scandal. It is not
at all clear what this shift had to do with the affair.

The shift
towards the Conservatives has largely taken place in Ontario and the three
provinces from Manitoba to Alberta. The bigger news, perhaps, is that support
for Justin Trudeau dropped far more than support for the Liberals, approvals declining
11% from December to the end of the first week in March; disapprovals rose 8%. The meagre good news for the Liberals – over the
period, Andrew Scheer has consistently polled below that of Justin Trudeau,
except that Justin lost sufficient support to leave him only marginally ahead
of Andrew Scheer.

One might
conclude that the SNC-Lavalin Affair did have an impact on voters, but a deeper
probe suggests that this was more because Trudeau’s reputation was further
tarnished, not, in my estimation, from the substantial issues at stake, but
because Justin’s political image was damaged by the discussion, either because
of the way the Liberals handled the issue or because of the substance or both.
I suggest that the problem lay in the way the “scandal” was handled. 40% of
Canadians, tuned into the issue to some degree. That in itself is revealing.

Bruce
Anderson concluded that, “a substantial enough number of people have
been following the SNC-Lavalin question, and the narrative they have been
exposed to, has shaken up the political landscape, and created opportunities
for the Conservatives and greater risks for the Liberal Party,” but no
conclusions can be drawn about the impact on the October election, eons away by
any political measure. However, the increased risk to the Liberals is evident
in David Coletto’s observation that, “More people now have a negative view of
the Prime Minister than a positive one – the first time since last March that
our surveys have found this.”

I do not
believe my analysis will have any significant impact on such polls. I believe the
results are products largely of impressions rather than analysis, though I have
generally found the coverage in The Globe
and Mail, the newspaper that originally broke the story, to be generally
very good, I believe a more comprehensive analysis is required. I will draw my
own conclusions and share them with you.

In today’s
blog, I focus on SNC-Lavalin itself. What is the extent of SNC-Lavalin’s use of
bribery in obtaining business in Libya and what is its significance? Has there
been a record of domestic corruption? Have SNC- Lavalin personnel, such as
former CEO Pierre Duhaime, benefited from such corruption?

The last is
easiest to answer. On 1 February 2019, Duhaime “pleaded guilty to a
charge of helping a public servant commit breach of trust for his role in a
bribery scandal linked to the construction of a $1.3 billion Montreal hospital.” SNC-Lavalin
had been accused of defrauding the McGill University Hospital Centre (MUHC) of
$22.5 million in a bid-rigging scam ensuring SNC would win the contract. The
bribery scandal received a great deal of notoriety over the role of Arthur
Porter, the former head of MUHC, who allegedly benefitted personally from the
fraud, but he was never brought to trial and in 2015 died of lung cancer in
Panama to which he had fled when the scandal broke.

In 2010, a Quebec consortium won the
$1.3 billion contract both to design and build the McGill University Health
Centre’s Glen Site, and, as well, maintain it until 2044. SNC-Lavalin was part
of that consortium. When Duhaime was arrested in what was called “the biggest
fraud and corruption investigation in Canadian history,” he was charged with
ordering the secret payments to a shell company to win the contract. However,
in the plea bargain, fourteen charges were dropped and Duhaime pleaded guilty
to one, his failure to investigate when an employee informed him of the
allegation. Further, prosecutors assented to including in the Agreed Statement of Facts that Duhaime did not
know about or authorize the bribes.

A
month before Duhaine’s resignation as CEO seven years ago in 2012, top executives, Vice-President Riadh Ben Aïssa and financial controller Stéphane Roy,
resigned. On 10 July 2018, Aïssa pleaded guilty to the charge of using forged
documents and was given one day prison time in addition to the time already
served in prison and the three years that he was required to wear a tracking
device after he was arrested in Switzerland and extradited to Canada. The
prosecution agreed that Aïssa never personally benefitted from the scam even
though he lived the high life as a top executive of SNC-Lavalin. Fifteen other
charges had been dropped. At the same time as Aïssa was convicted, in a
separate trial, Roy was acquitted of the two charges against him, fraud and
using forged documents.

The underlying issue in the criminal
investigation is not just SNC-Lavalin’s charges for fraud and corruption in connection with the alleged nearly
$48 million in payments made to Libyan government officials between 2001
and 2011, less than $5 million a year, but the effect of the culture of
corruption that infected the company in its overseas dealings on the domestic
situation in Canada over the same period. Aïssa was closely tied in with Saadi
Gaddafi, the third son of the former dictator, Muammar Gaddafi. Saadi was
responsible for dealing with patronage. In return for awarding the contract to
SNC-Lavalin, Aïssa arranged that 21.5 million euros and US$21.9 million be
deposited into Swiss bank accounts controlled by Saadi Gadaffi.

I became familiar with SNC-Lavalin’s connection to Libya a few years ago
in the course of other research I was conducting. I first became acquainted
with Mexican intelligence discovery of efforts to smuggle Saadi to Mexico in
the course of which I came across a number of electronic documents about the
location of the over US$100 billion stolen by the Gadaffis from the Libyan
people. Now that Muammar had been trapped and killed by Libyans and Saadi in
March 2014 was extradited to Libya from Niger to stand trial for murder, but
was acquitted, the question was where the loot had gone and who controlled it.
I traced the funds to South Africa. Though it was not yet clear to me who now
controlled the money and where it was, two Israeli billionaires and the Mossad
seemed to be involved.

The evidence for that involvement was included in a blog a few years
ago. Two of the planned series went out and when I was writing the third one
early in the morning in Mexico, my screen went all fuzzy. I could not reboot my
laptop. I did not know what I had done and took the computer in for repairs
and, at worst, to recover the documents and data I had collected. There was
evidently no possibility of either. The computer had been totally destroyed
electronically. Neither the software nor the contents were recoverable. The
computer expert said that he had never seen anything like the damage done.
Lacking the documentation, I discontinued my writing on the missing Libyan
money.

Many however have
been critical of the results of how the perpetrators of theses criminal activities
get off virtually scot free and want the SNC-Lavalin charges re Libya to go to
trial, not only to see the effects of corporate bribery in maintaining and
enabling bloody dictators in states such as Libya, especially at a time when
dictatorships are on the march around the world, but to throw light on the
company’s culture of corruption.

On the other
hand, Conrad Black argues that, “Companies have to disgorge funds sometimes but
they don’t commit crimes; people do, and everybody, especially in such a woolly
state of affairs as this, deserves a presumption of absence of guilt. And if
executives are fairly judged to have committed crimes, they face the sentences
but the company continues in the hands of people with better judgment and
ethics.

“SNC-Lavalin
has had its ups and downs, but it is a legitimate Canadian international
business success story and should not be
summarily castigated as financially and ethically bankrupt (my italics) on
allegations as flimsy and unsourced as these. Nor, as a country, should we be
in the business of trying to drive a large and successful company into the
hands of the receiver. The receivers are a bigger gang of crooks than any
corrupt executives in this country going back to the CPR scandal of 1873.”

Companies do
not commit crimes!!! The law says they can and do. Corporations, though not
natural persons, are legal persons and can be held liable for offences committed
by its personnel. Canada now has laws on the books that make is a statutory offence
when a company bribes officials overseas so that there is a liability attached
to the corporation, either as the principal or joint principal with a natural
human agent.

The issue is
not whether SNC is a legitimate corporation. It is. Nor can one determine
whether the evidence behind the allegations is flimsy or not until the issue
comes to trial or the investigators agree on a plea bargain. Black, however, is
correct; corporate corruption and the corruption of individual agents in such
corporations are difficult to prove in a court of law. Hence, the use of plea
bargains. However, the Canadian
Corruption of Foreign Public Officials Act clearly and unequivocally makes it
illegal for a Canadian company or its officers to use financial favours to
obtain contracts.

A more
general response encouraging indulgence is that this is the way the world
works. If Canadian companies want to get contracts in the Third World, they
have to pay bribes. This is all business as usual. It is the way the world
works.

However, as
indicated above, if Canada, if Canadians, if Canadian companies beget and are complicit
in such crimes overseas, the cost is born by ordinary people. Further, the culture
of criminality spreads to Canada. The result is a loss of faith in our
financial and political institutions that end up eroding democracy and creating
space for dictators to arise promising to clean up the swamp but, in reality,
doing so usually be creating their own larger swamp.

That is
why this issue is central to the heart of democracy. Did our highest elected
officials conspire to get a Canadian company off the hook when it was accused
of paying such bribes? The issue is a legal one. The issue is an ethical one.
The issue is a political one beyond the cossetting and enabling role in
abetting overseas dictators to rob their own people, but the rot spreads
domestically to Canada. Perhaps, even more ominously, the rot strengthens authoritarianism
everywhere.

Thus, the
issue of whether the government suborned its own laws to get SNC-Lavalin off
the hook through the use of a deferred prosecution agreement (DPA) is critical
to the health of Canadian democracy. Did Justin Trudeau instruct or pressure Canada’s
Attorney General to provide SNC-Lavalin with an escape hatch for criminal responsibility?

I owe you an
explanation for my silence. I promised a follow-up on the SNC-Lavalin affair.
Though I have been sporadically collecting notes on it, I have been unable to
address the issue. I will try to do so next week.

My brother
had 3 strokes and a heart attack. Thankfully, yesterday, he seems to have
turned a corner. This morning, the doctors are performing an angioplasty to
remove the clot in the anterior coronary artery and insert a stent. I will keep
you posted periodically on his recovery.

Most discussions
on the Torah and in synagogues this week are understandably about Purim and the
story of Esther. However, this week’s parashat
is somehow much more related to where my mind and feelings are. The Book of
Leviticus (Vayikra) initial portion
is mostly about the rules governing the korbanot
(the sacrificial offerings) and the mikdash
(the portable tabernacle) However, it is the initial verse that grabs me.

1 And the LORD called unto
Moses, and spoke unto him out of the tent of meeting, saying:

God then
provides a long list of instructions about the sacrifices. However, the book
begins: “the Lord called unto Moses.” In Exodus 24:6, the glory of God settled
down on Mount Sinai and the cloud covered the mountain for six days. On the
seventh day, the Lord called to Moses from
within the cloud. Even on shabat,
the cloud of depression, which the rabbis call the cloud of glory, did not
lift. God’s voice could be heard calling Moses from within the cloud. At the
beginning of Leviticus, Moses was again called. But did the voice of God emerge
from within the cloud?

In Exodus, a
voice was heard. But the sight of the glory of the Lord was like a “consuming
fire” on the mountain top. It was as if the pillar of fire provided a backdrop
for the voice emerging from the clouds. I think that when God addresses humans,
Moses in this case, it is often through a melancholic haze. But to hear God,
the fire of life, the passion must also be present as a precondition for
hearing. However, we control neither the cloud that hangs over us or the
passion for life. What we can control is our willingness to listen, our
willingness to hear, our willingness to pronounce, “Hineni!,” Here I am. Here I
stand. Here I am ready to hear.

What do you
need to hear the voice of God, particularly if you are not alone in a sanctuary
or on a mountain? What do you have to hear in the tent of meeting? First, you
have to shut out the distracting noise. You cannot do so physically in a
hospital ward; it can be one of the noisiest places. But you can bracket the
noise. This is easiest in the early hours of the day before the hubbub begins
in earnest. Further, it is not just the noise from outside the hospital room
that is so distracting. Even more so are the voices in your own head instilling
in you the conviction that everything seems dark and confusing. The despair in
that noise, the desperation, the depression, all seem to crowd out optimism and
hope.

But
bracketing the noise from without and the noises in one’s own head is
insufficient. “And the Lord called…” The issue is not whether the call is out
there, but whether you are listening for such a call. That is very hard to do
when you are depressed, when most of the empirical evidence seems to contradict
any possibility of hope. And no one can really tell whether you are listening.
Whether it is Moses or yourself, the call of hope is the most private of calls
you will ever receive. No amount of cheerleading from the sidelines will
determine whether you can hear. And when and if you do hear, the evidence for
your picking up the receiver will be slight. But first you have to shut out
other noise. Then you have to listen. And only then will it be possible to
hear.

Hear what?
That it won’t be a bed of roses. That it is going to require effort and
sacrifice. For in order to both listen and hear, ironically, in this most
private of conversations, you also have to hear the support from around you.
But it is you who has to sacrifice. It is you that has to carry the enormous
burden of allowing the sun to break through the clouds. No one can do it for
you. But you have to hear the command to do it for others – not for you to live
a few more years, but for others to live a few more years with you around. You
have to hear the call that the effort and sacrifice in the end are not for
yourself but for others.

But the call
comes through a cloud. You are confused. You are depressed. How can you hear
through all the static on the ward, though all that booming and buzzing in your
head and through all the encouraging words? The latter, even when expressed
with the greatest sincerity, can’t help but be interpreted as rote, as language
that imitates enthusiasm and encouragement but can be experienced as fraud.
God’s voice may even boom. But can it cut through the ward noise, the internal
noise and the words of encouragement that can come across as discouraging in
its rhetorical repetition?

However, we
can help. We have to keep our messages both sincere and simple. If someone is
to listen, and if the only one that is important in speaking is the Lord, then
it is critical that core information be transferred in the most concise and
clear way possible. If Moses is to hear God, if Moses is to come face to face
with death, encouragement is helpful, but it is a journey and confrontation one
has to do on one’s own. However, you can reduce the noise as much as possible
so that the voice of hope can break through the inevitable cloud of despair.

But what can
we do about the distracting, the negative and the melancholy inside oneself as
well as within the one who has to listen and hear? Years ago, decades ago, when
I was still in my twenties. a close friend was in a bed on a hospital ward in
the Toronto General. He was only in his late twenties. As the cliché goes, he
was on his death bed.

Another
friend flew up from New York. He sat beside our friend, he stroked the hand and
the arm of my very sick buddy and then he did the most surprising thing of all.
He got in bed with him. He not only got in bed, but he got on top of him and
embraced him. It was an embrace that went on for only 5-10 minutes, but it
seemed an eternity. Finally, in a totally surprising strong voice, my sick
buddy said to H2, “What’s up? Have you come out of the closet? Are you gay?”

It was not
just the quip. It was the very best signal you can imagine. My sick friend had
turned the corner. The silence of touch can be more embracing than all the
words of encouragement in the world. I had sat frozen in the pit of pessimism.
H2 pressed ahead to cut through the cloud, not so my sick friend could hear his
voice, but so he could hear His voice, the voice of hope in the face of
despair.

But, in the
end, Moses stands alone in front of the altar. And what does he hear? A list of
instructions. Bend your toes. Lift your legs, one at a time. Bend your knees.
Lift your left arm. Grip my hand. Lift your right arm. No, not your left. Your
right, the one I am touching. The one I am caressing. Open your eyes. Do you
see me? How many fingers am I showing you? No suggestions of hope. No promises.
Just information. One bit at a time. Tenderness, not toughness. Still the
doubt. Still the despair. Concentrate on practices. Concentrate on what you can
do. Allow the work to begin. Still the voices of rhetorical hope burdened with
despair. Allow the word of the Lord to be heard, to cut through the noise, to
create an even better world. For, as in Genesis, it is with words that our
world is created.

Worrying is
not loving. Wishing does not require pretense. Responsibility does not entail
doing for another what the other must do for himself. For it is he, it is Moses
on the mount, who must hear the message. This does not mean telling him that
everything is better than it is. Honesty is required. Be direct so he can directly
attend to the voice that can cut through the cloud. Provide the information.
Provide the source for determining its reliability. Do not exaggerate. Focus on
possibilities, on resources available and on real opportunities.

If one is
sick, very sick, if one is near death so that the man with the scythe is
trimming your toe nails, the horseman of the apocalypse does not weigh out
crumbs of bread in scanty measure, but opens up fully, completely, as H2 once
did. Even if you offer a sip of juice or a spoon of yogurt, expect rejection.
Expect anger. Expect even an inner rage worn away by suffering. But that anger
can be cut through so that the person facing death can ask to be heard and not
repeat that there is no one to ask and no me left to ask.

Moses had to
be very tired climbing that mountain. Every time he appears in the inner
sanctum of the mishkan, he repeats
that experience. He repeats the experience of being on the death bed of his old
self for forty days and forty nights. And when a loved one is in the same
position, we must connect, not disconnect. I do it by bargaining to try to cut
through the anger and the doubt. I have no idea if it works. But it is the best
piece of rhetorical equipment in my toolbox.

Others, I
know, are better, much better. They can allow their love to whisper and embrace
another. They can utter a “small thin sound” that reverberates through, not
just the room, but through a whole hospital and it can wrap around a much
diminished body in a silken scarf. And they do so, as I observe, not so much by
speaking, but by listening, by listening closely. They may not be able to hear
the word of the Lord, but they seem to trust that Moses can.

Some call it
the power of positive thinking. But that always sounds trite to me. Certainly,
you can accentuate the positive, but this does not entail dishonesty. Certainly,
you can avoid the sound that reverberates like thunder that blocks out those
whispers. Certainly, you can focus on your own positive feelings of hope. Most
of all, you can be present, truly present. You may even witness the miracle
embedded in every second. Maybe you may even hear your loved one say, “Hineni,”
“Here I am.” It is always possible to tune in rather than tune out.

38 For the cloud of the LORD
was upon the tabernacle by day, and there was fire therein by night, in the
sight of all the house of Israel, throughout all their journeys.– {P}

After
finishing the verses and the Book of Exodus, an Orthodox congregation rises and
shouts: “Chazak, chazak,
venitchazek!” (“Be
strong, be strong, and we will be strong!”) Why the need, and the urge to
reinforce the need, for standing tall, for being strong? Why the determination?
What is it about the cloud by day and the fire by night that demanded such a
response?

According to Rashi,
citing the Talmud, the cloud was Aaron’s talisman just as the well was Miriam’s
and the manna was Moses’. Why then did the Clouds of Glory disappear when Aaron
died? If, as the rabbis argued, the cloud itself was glorious because it
performed magical functions – flattening hills, raising valleys, destroying
snakes and scorpions and generally undertaking beneficent feats – why, if that
was the case, and if water associated with Miriam was also crucial to life,
why, if the people cried out and rebelled when the wells went dry, why did they
not cry out and complain when the cloud lifted and disappeared? Was the lifting
of the cloud in any way related to the cloud of guilt that remained over Aaron’s
guilt and failure to properly atone for his role in building the Golden Calf?

One possible answer – the
clouds were no longer needed. After all, the clouds, the rabbis contend,
originally performed the service of a rearguard to protect the Israelites from
the wrath of the Egyptians following them. Thus, the IDF called one of their
operations Amud Anan, translated
either as Pillar of Cloud or Pillar of Defence. As the angel moved to their
rear, so did the clouds. The clouds then moved into a forward position as they
crossed the desert. Now, the trip across the desert was almost over. The
Israelites no longer needed the clouds to navigate for them; they were entering
a settled territory. Protection from the hot sun was not needed. Water to wash
clothes was not needed. The rough terrain of the Sinai was behind them. But
were the clouds not needed for spiritual guidance to ensure that the Israelites
traveled on the correct moral path as well as the physical one?

After all. Exodus ends, not with the cloud leading the Israelites
as they travelled across the desert, but as a cloud that covered the Tent of
Meeting. When it covered that Tent, the Eternal moved into His home and
occupied the mishkan. Only when the
cloud lifted and went before them, could they continue their journey. This must
provide the critical clue to the meaning and role of the clouds. Moses and the people had finished
building the Tabernacle. It was shabat.
God was present and in occupancy. Out of the emptiness between the cherubim and
hidden in the cloudy mist, the voice of God could emerge from a portable shrine.
As Nahum Sarna wrote,

The function of the
Tabernacle was to create a portable Sinai, a means by which a continued avenue
of communication with God could be maintained. As the people move away from the
mount of revelation, they need a visible, tangible symbol of God’s ever-abiding
Presence in their midst. (The JPS Torah Commentary:
Exodus, p. 237)

Though the Book of Numbers does not follow
sequentially in the published version, as a narrative it is what comes next
when the wanderings of the Israelites in the desert are described. The desert
is not just a physical entity anymore than the clouds are. Numbers offers tales
of loss of faith, of distrust, of rebellion. We read of a spiritual as well as
a physical journey and the people will need all the strength in the world to
complete it. It is in Numbers (7:89) that Moses will finally be invited into the
tent of God’s abode which he was unable to do at the end of Exodus. Have the
clouds become providential by then rather than a source of intimidation?

By this time, the Israelites are totally
disoriented and need to be pointed in the right direction. They are displaced
persons, physically, psychologically, socially and politically. It is in that
condition that they experience God as both inhabiting the mishkan and prohibiting entry. God occupies the space between the
cherubim to fill the emptiness, the hollow in their hearts, that they
experience as a refugee population of displaced people. Does that mean, as
mediaeval commentators suggested, that the completion of the Tabernacle marked
a new stage of solidarity and established a loving relationship between God and
his people wherein God’s love became accessible and tangible?

The implication is that the clouds served as a new
miracle drug, ketamine, for depression. After taking the drug, a patient
declared, “It was like the weight in my head, the cloud (my italics) that was there for
decades, just disappeared. It changed the entire course of my life.” However, the
drug may also have the effect of producing hallucinations, tunnel vision and
dissociative effects; people feel untethered from their surroundings.

The
older antidepressants, such as prozak, target the neurotransmitters – serotonin,
norepinephrine or dopamine. The new drugrole in learning and memory.” Ketamine,
targets glutamate, described as a “powerful
excitatory neurotransmitter that is released by nerve cells in the brain. It is responsible for
sending signals between nerve cells, and, under normal conditions, plays an
important role in mood, learning and memory.

I suggest the cloud serves as the biblical
equivalent to ketamine to stimulate learning and memory, while, at one and the
same time, after the mishkan was
completed, it was as if the Israelites suffered from post-partum depression.
The clouds marked that depression. In one sense, up to that point, the
Israelites had been encased in the illusion that they were free. They had
escaped slavery. Bu mentally and emotionally, they were still slaves.

The cloud occupied and emerged from behind the
curtain of the Tabernacle to expose the deep darkness, the darkness that was
over the deep. For although God said, “Let there be light,” that light made the
darkness behind it more vivid. Instead of love and harmony, God cast a cloud of
gloom and inspired nightmares and depression, though also the way to get around
that depression, through learning and memory rather than simply following the
dictates of a leader or idolatry of any kind. It was as if, upon completing the
mishkan, the Israelites faced the
despair of what freedom entailed and became nauseous, became delirious.

As Deborah Eisenberg described a parallel
experience in one of her short stories, what the Israelites must have felt, the
cloud by day led them to face the fires by night, “demonic, vengeful, helpless,
ardent fires as they consumed the trees that had replaced the crops – to
observe the moment when, at the heart of the conflagration, the trees that
sustained it became phantoms, the fire’s memories.” To understand the character
and role of those clouds, one must understand the role of the fires by night
that plagued the dreams, the imaginations, the nightmares of the Israelites,
but which, at the same time, led to the striking core of their religion, the
dedication to both learning and memory.

For if we are not to live just in the moment, if we
are to live in the tension between past and future, we must face the fact that
the past is a site of conflagration. Enemies from without become the enemies
within. What we have left from those fires in our brains are the ghosts of pine
trees. The fires are demonic. The fires are vengeful. The fires are ardent and
urgent. They rendered the Israelites passive and relegated them to be potential
tools of the certainties of a fascist leader. The Israelites had to face their
phantoms. The clouds did not so much protect the Israelites from their
surrounding enemies and from the challenges of the harsh landscape and the
broiling sun, but from the fires within that would and did periodically erupt
in the politics of resentment.

Stupidity is destructive and ripples through any
society like the devastation of a firestorm. God occupies the space between the
guardian cherubim, the guardians of memory. Memory translated into history
allows one to experience the dialectic between the two, between past and
future, to discover the harmony and
the integrity found in the drama of history. That harmony is not bestowed on
the Israelites like a blanket of love, but as a melancholic cloud that can only
be lifted by wrestling with our souls, our dreams and our experiences. The
journey is hard and tricky.

The journey will not allow us to live just in the
present, but demands that we live in tension between the past and the future,
between the ghosts of trees that remain from the consuming fires and the hopes
and prospects of a better future. In the meanwhile, we cannot help being struck
by a God that baffles us, by the very baffling of the unrolling of history. The
very first lesson we must learn is that there is no hard line between the past
and the future that will define the present. It is the present that is
ephemeral whereas the combination of moisture and air that constitutes clouds
allows us to feel, to be cool as we try to unlock the secrets of the deep
behind the destruction of past fires.

I have been discussing American politics for so long
that it is easy to forget that I am Canadian. I did make a small reference to
the issue in my previous blog and introduced the subject of Treasury Board
Chair Jane Philpott’s resignation from the cabinet in solidarity with former
Attorney-General Jody Wilson-Raybould and Jane’s loss of confidence in the way the government
had dealt with the criminal charges against SNC-Lavalin. In her letter of
resignation, Jane wrote, “Unfortunately, the evidence of efforts by politicians
and/or officials to pressure the former Attorney General to intervene in the
criminal case involving SNC-Lavalin, and the evidence as to the content of
those efforts raised serious concerns for me…The solemn principles at stake are
the independence and integrity of our justice system.” Note the evidence did
not lead her to draw conclusions, only raise concerns in her mind. So why did
she not wait until the Ethics Commissioner handed down a ruling or the Justice
Committee finished its hearings and possibly drew up a report?

I am currently mesmerized by the troubles Justin
Trudeau is in over the SNC-Lavalin Affair and need to write about that even
though many of my readers who are not Canadian may have only a marginal interest
in the current Canadian political crisis. And it is a crisis. But should it be?

It
is a crisis that should matter, not only to Canadians, but to the rest of the
world. After all, it begins with an issue of corruption in the private sector
of a Canadian company with a global reach. Perhaps, even more importantly at
this time, it is about the stability of a country currently led by a centrist
government that has been a target of disdain by Donald Trump, who launched a
trade war with America’s largest economic trading partner. And it is not just
about trade. For Americans who want to campaign in the next presidential
election over the issue of a single-payer system for health insurance, America’s
next-door neighbour offers an example of a polity where a charge of “socialism”
as a vicious epithet is difficult, though, unfortunately, far from impossible,
to use in characterizing Canada’s welfare state.

More
to the point, given the difficulties of Donald Trump over charges of
obstruction of justice, the centre of the crisis has shifted from the alleged
corruption of SNC-Lavalin to the issue of whether the Prime Minister and, or,
his staff in his office or the Privy Council brought untoward pressure on the
Attorney General in charge of deciding whether to go forward with the criminal
charges against SNC-Lavalin in a court of law. Americans may, probably very
justly, see the controversy in Canada over obstruction of justice as a dispute about
a few children playing in a sandbox since the offence, relative to the American
situation, is so marginal and the consequences so peripheral to core political
issues of international concern. But the issue is important and goes to the
heart of the institutions at the core of a democracy.

I choose to write on this
issue today instead of waiting to hear all the evidence when I could and will
make my mind up on the issue when I have much more information than the paltry
amount I have now. There is a parallel, and quieter, investigation by the
Parliamentary Ethics Commissioner into whether there was a breach of Section 9
of the Conflict of Interest Act prohibiting high-level government officials
seeking to influence the decisions of another official to improperly advance “a
person’s private interests.” Could the efforts of Prime Minister Trudeau or his
office be interpreted as efforts to advance the interests of SNC-Lavalin, its
executives and shareholders? I write now because I want to pre-empt hearing
some evidence. Gerry Butts, who three weeks earlier resigned as Trudeau’s chief
policy advisor precisely over this issue, is testifying before a House of
Commons Justice Committee today. I want to read his testimony in full
preparation mode. I also do not want his input to unduly influence me since, a)
he is my former graduate student and b) he has remained a personal friend.

I had already predicted
that the controversy would not go away simply because Gerry resigned. In fact,
the resignation, I believe, provided a dollop to help escalate the crisis. But
that is neither here nor there. What matters is getting a handle on the key issues.
I anticipate that, contrary to the prediction of much of the press, Gerry will
not provide a counter-narrative to that of former attorney general Jody
Wilson-Raybould. I believe that both Justin and Gerry respected Jody’s
abilities and her integrity too much for that. I note that, although
discussions and communications between Jody and the director of public
prosecutions remain confidential in accordance with standard practice, on 25
February Trudeau’s government issued an order-in-council to waive any claim for
solicitor-client privilege that limit what Jody could say or reveal about her
discussions with Trudeau and his office. However, though I do not believe Gerry
will contradict what Jody said, I believe he will provide a different
interpretation of the issue. I guess that his criticisms will be about
political smarts rather than integrity.

Sheila Copps, who is also
currently in Puerto Vallarta, argued that Justin should “lance the boil” and
kick both women out of caucus. They have damaged the party and the brand. Jody
claimed that she has not been free to speak whereas there has been no effort to
suppress her from speaking. Further, Copps noted, that on this issue, Jody made
it clear that she had made up her mind even before the PM spoke to her. Sheila
accused Jody of being unable to listen and insisted that Justin should act
tougher and more decisively. Chrystia Freeland, the outstanding Canadian
Finance Minister, has also weighed in defending Justin as both a boss and a
feminist.

This is very different
than the way much of the foreign press and some of the Canadian press have
dealt with the crisis. When I read the foreign press, particularly the American
press, I find it distressing that the issue is being treated as one about a
politician who is losing or who has lost his “star power.” Justin was the
young, energetic, untarnished representative of a new generation of politicians
driven by ideas and ideals. As The
Washington Post reported this morning, his “charmed” rise to power has been
lost. A key issue is not the loss of
Justin Trudeau’s sex appeal as a superstar politico in the political
entertainment industry.

But it is not just the foreign press. A headline on a
Neil Macdonald story read:

TRUDEAU’S VERBAL
PORRIDGE AND SERENE SMILE HAVE CARRIED HIM ALONG. UNTIL NOW

The
reality is that the shine has been off Justin’s star power for some time. Some
argue that the Indian trip and his family’s dress code did him in. Others trace
it to Justin and his family going on a very expensive holiday provided free by
the Aga Khan, who happened to be an old family friend. Still others trace his
fall from grace to his reneging on his electoral promise to reform the
first-past-the-post electoral system. Or was it the enormous sum the Trudeau
government paid to bail out and possibly build a pipeline that had questionable
prospects? Most egregiously, for others, Trudeau has joined his southern leader
in kowtowing to the Saudis while, at the same time, getting into a row with
China. Whatever the trigger, Justin’s entertainment value is not relevant.
However, the perception and the reality of him as a political leader are.

It
is not simply of importance to Canada. Democracy is under assault across the
world. Canada is a beacon of hope in this challenge to democracy. Further,
unlike many of its allies, most Canadians retain confidence that they have an
honest government, whatever the differences over policy. Thus, the SNC-Lavalin
affair is important, not only to Canadians but to the rest of the world.

Anyone
familiar with the theft of monies from the Libyan people during these years
will recognize this as a pittance. Years ago, inadvertently, I came across some
key information on the quest to recover the fifty to one hundred billion dollars
stolen in Libya and the location of those funds. I wrote up some of my findings
in an article. It appeared that Israel’s Mossad and some Israeli billionaires had
possibly played key roles in tracing down those funds and possibly sequestering
them.

Shortly
after my piece appeared, my computer seized up. I took it in to a service
person to unlock the computer so I could at least recover my information and
writings to transfer them to a new computer at the very least. I was told that
this would be impossible. The problem was not with the computer’s electronics,
but it appeared that someone had hacked into my computer and totally destroyed
everything on it, programs and writings. Absolutely nothing was recoverable. I
had no material to continue my series on locating the missing Libyan billions,
though my older articles and other material had been stored on an older computer
that I no longer used.

My
point is simple. The SNC-Lavalin corruption case is very important to Canadians
and to Canadian foreign policy promoting integrity in dealing with other
states, particularly developing states. But in the overall scheme of things,
the alleged corruption charges against SNC-Lavalin were not only small potatoes,
but did not even rise to the level of salt on those potatoes. Nevertheless,
like many such corruption issues, the after-effects in the political arena
emerge as far more significant.

The
case against SNC-Lavalin looked solid and, if convicted, SNC-Lavalin could be
banned from obtaining contracts for ten years. But the issue is not simply the
strength of a major Canadian business based in Quebec and its integrity, but
the integrity of the Canadian government and its failure to maintain a wall
between the influence of business and the integrity of the political process.

For
SNC-Lavalin had managed to get an amendment included in the Criminal Code in a
582-page omnibus budget bill in 2017 based on a promise by SNC-Lavalin to
reform and on the prospect of SNC-Lavalin’s plans to expand its Canadian
operation. SNC-Lavalin President and CEO, Neil Bruce, had lobbied the Canadian
government and sent a letter to Public Services
Minister Carla Qualtrough
to that
effect to change its anti-corruption rules “as expeditiously as possible” so SNC-Lavalin
could avoid prosecution by creating a plea-bargain alternative, known as a
deferred prosecution agreement (DPA) between the government and a corporation
which had demonstrated that it had reformed after a record of corrupt behaviour.
SNC-Lavalin, he claimed, was now a leader in exemplary ethical conduct and had
forfeited a great deal of business abroad to avoid improper conduct. Those
changes in Canadian law would, purportedly, align Canadian laws with those of
the U.S., Britain and France and allow SNC-Lavalin to operate on a level
playing field.

The
actual detailed changes to the “integrity regime” have still not been published,
but the issue remained whether individuals and firms committing economic
offences – bribery and fraud – should be spared criminal charges in order to “reduce
the negative consequences of the wrongdoing for persons — employees, customers,
pensioners and others (there are 9,000 in Canada, mostly in Quebec) — who
did not engage in the wrongdoing.” The Criminal Code specifically excludes
using nation-state economic interests or inter-state foreign relations as a
reason for the application of a DPA.

Jody
claimed that, in one conversation with the PM, and in others with various
officials, including 11 from the PMO, the
Privy Council Office and the office of the Minister of Finance (Trudeau’s chief of staff Katie Telford,
his then-principal secretary Butts, PMO staffers Mathieu Bouchard and
Elder Marques, Finance Minister Bill Morneau, Morneau’s chief of staff Ben Chin
and Clerk of the Privy Council Michael Wernick), she had
been subjected to “a consistent and
sustained effort by many people within the government to seek to politically
interfere in the exercise of prosecutorial discretion in my role as
the Attorney General of Canada in an inappropriate effort to secure a deferred
prosecution agreement (DPA) with SNC-Lavalin.” Sheila Copps in her
interview on “As It Happens” on CBC quipped, if 11 discussions and 7 emails
constitute pressure, Jody has no idea what pressure is. Sheila, when she was in
cabinet, but especially when she was Deputy Prime-Minister, on any single issue
was subject to hundreds, even thousands, of communications. She wondered aloud,
what if the jobs of 9,000 First Nations people had been at stake. On the other
hand, was Trudeau being a structural racist when he first offered Jody the
responsibility for Indigenous Services? Jody declined (according to Butts,
unprecedented) because she had spent her life fighting the Indian Act and could
not in good conscience administer it.

The Attorney General in the Canadian government has an independent, non-partisan role, especially in the
oversight of federal prosecutions. Jody
claimed that in one conversation with the PM on 17 September 2018, the PM told
her he needed a solution to the problem since many jobs would be lost without a
DPA, that the company threatened to move out of Montreal and possibly Canada, and
that an election was on the horizon, but denied he was pressuring her and
insisted only that he was merely searching for a solution to the problem.

Jody
insisted in turn that she had done her due
diligence and made up her mind, as Copps noted, even before discussing the
issue with the PM or cabinet. She was not going to interfere with the decision
of the director even though, under Section 10 of the DPP Act, the AG is
permitted to issue directives “on the initiation or conduct of any specific
prosecution.” Further, Jody insisted, the only relevant factor was the
criminality of the accused, even though the DPA specifically made provision for
settling a case out of court. She, as minister, could neither be nor be seen to
be responding to political pressure. The problem remained – when do advice and
information and exchanges of views amount to pressure and even a direction?

Justin specifically denied any direction. Gerry even denied
that any pressure had been applied. Trudeau had insisted that, in the end, the
decision was hers to make alone. Most importantly, Jody herself stated that
nothing that had transpired had been illegal.

What we do know for sure is that in October 2018, the Public Prosecution Service of Canada made a determination that SNC-Lavalin had not met the criteria for a DPA. Jody refused to intervene in that decision, though she could have issued a direction in writing to be posted in the Canadian Gazette. The issue was not that she could not intervene, but that she would not. On 7 January 2019, Jody was demoted and moved to another more junior ministry, Minister of Veterans Affairs, and expressed the belief that this had taken place because she had refused to issue a DPA for SNC-Lavalin.

The
crisis unfolds. Questions to keep in mind:

Should Jody have threatened to resign if the attempt to “pressure”
on her did not desist?

Should she have resigned
rather than accept a demotion?

Should and will Trudeau
exclude her from the Liberal caucus?

Why are Jody and Jane dealing
with this matter as if it is central to the integrity of government?

Whatever the factors, has
Trudeau demonstrated incompetence in managing his own ministers and his House
of Commons colleagues?

What does the crisis say about
recruiting two very accomplished and committed women and promoting them to
cabinet when they lacked any deep roots in the Liberal party and in the
day-to-day requirements of compromise needed for effective governing?